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Even in drought, CA water rights politically toxic

It was the worst drought in California’s history. Reservoir levels hit new lows as a historically dry year was followed by the driest year ever recorded. Forty-seven of the state’s 58 counties declared drought emergencies, and officials urged Californians to flush their toilets less and let their lawns go brown. Central Valley farmers pumped more groundwater than usual to make up for lost rainfall. Facing a crisis, Gov. Jerry Brown decided it might be time to tackle a thorny political subject: water rights.

Reservoirs hit new lows as a historically dry year was followed by the driest year ever recorded. Forty-seven of the state’s 58 counties declared drought emergencies, and officials urged Californians to flush their toilets less and let their lawns go brown. Central Valley farmers pumped more groundwater than usual to make up for lost rainfall.

Facing a crisis, Gov. Jerry Brown decided it might be time to tackle a thorny political subject: water rights.

Brown established a commission to review water rights law, saying in an executive order that existing law “includes impediments to the fullest beneficial use of California’s water.” The group started crafting recommendations: Give state officials stronger authority to cut off illegal or unsustainable water use. Ditch the “use it or lose it” mentality that discourages conservation. Make it easier for people to temporarily trade their water rights to willing buyers.

Then it rained. A lot.

It was 1978.

“The drought was over, and those recommendations got put on the shelf,” said Richard Frank, an environmental law professor at the University of California, Davis. “Nothing happened.”

Nearly 40 years later, most experts agree that California’s water rights system is still a mess. A web of outdated laws and antiquated attitudes, they say, actively hinders the state’s ability to ensure everyone has enough water — a problem that will only get worse as climate change makes severe water shortages more likely.

It’s no secret why lawmakers haven’t taken action: Water rights are a third rail of California politics.

The state’s longest-standing rights holders — especially upstate farmers, but also cities and water agencies — have long resisted even the smallest changes to a system that has benefited them for a century. As it stands, rights holders can take water from rivers and streams with little oversight, and little scrutiny of how much they’re taking. State officials don’t have an efficient way of forcing the most senior rights holders to cut back in times of scarcity.

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Even during the current drought — which has generated unprecedented political will for bold water initiatives — lawmakers haven’t touched water rights. Voters approved a $7.5 billion water bond, and legislators passed a bill that will regulate groundwater for the first time. But surface water rights are apparently still off limits.

“Everybody with senior water rights has a huge interest in keeping the system exactly the way it is, even if it means hurting other people — which it does,” said Thomas Holyoke, a water politics expert at California State University, Fresno. “Everybody is retreating into the corners they have, and arming themselves legalistically to defend what little water they still have.”

Advocates for the agriculture industry reject most criticisms of the current system, which they say does its job well. The real problem, they say, is that the state doesn’t have enough water to go around, a problem that can only be solved through desalination, dams, wastewater recycling, and other methods to increase supply.

“We can change the water rights system, but that’s just going to reallocate the scarcity to somebody else. It’s just going to create a different set of have-nots,” said Chris Scheuring, an attorney for the California Farm Bureau Federation. “It’s the underlying scarcity that needs to be addressed.”

More than half a dozen independent experts interviewed for this article proposed similar fixes for California’s water rights system. They all started with the same premise: Lawmakers can’t dump the current system and start from scratch, for reasons both practical and political.

“We’re not going to throw water rights out. We’re going to fiddle around the margins,” said Peter Gleick, president of the Pacific Institute, an Oakland-based think tank.

One of the biggest problems with the current system, experts say, is a glaring lack of oversight.

Junior rights holders — who established their claims after 1914 — are required to report how much water they’re using just once a year. Senior rights holders have to report once every three years, although that will soon change to once a year. Loopholes in reporting requirements make it difficult for the State Water Resources Control Board to know how much surface water is being used overall, and therefore how much water is being stolen.

“We have a surprisingly bad handle on how much water actually is used, by whom, at what point, and for what,” said Holly Doremus, an environmental law professor at the University of California, Berkeley. “There are surely unlawful diversions going on.”

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Sprinklers irrigate a field near Fillmore Street and Avenue 54 in the eastern Coachella Valley on Sept. 24, 2015.(Photo: Jay Calderon/The Desert Sun)

That information gap makes it difficult for state officials to force water users to follow the rules. And even if they had comprehensive data, it’s not clear how much authority they would have to enforce existing water rights.

The water rights system is based on seniority. When water is scarce, state officials are supposed to require junior water users to cut back first, starting with those who established their claims most recently. Senior rights holders — who staked their claims before 1914 — are only supposed to be affected during the most serious droughts.

“It works fine when there’s plenty of water, but the conflicts start bubbling up as shortages become more severe,” said Thomas Howard, executive director of the State Water Resources Control Board.

The water board started cutting off supplies for junior rights holders last year, as the drought deepened. Then in June of this year, it ordered some senior rights holders to stop taking water, for just the second time in state history. (Coachella and Imperial Valley farmers, who use water from the federally controlled Colorado River, weren’t affected.)

Several senior rights holders immediately sued the water board, arguing the state has no authority over pre-1914 water rights. The lawsuits reflected what UC Davis’ Frank described as an “odd laissez-faire attitude” that has long defined California water politics: a deeply ingrained belief that water rights are sacred, not to be infringed upon.

“A lot of the water users are screaming bloody murder, as if it’s an intrusion upon their First Amendment rights,” Frank said. “State constitutional provisions are very clear on this, that water is a public resource and that all private parties can do is obtain a right to use it. They don’t own the water.”

Farm bureau attorney Scheuring rejected that interpretation of California law, saying it ignores the history of water in the West, not to mention the economic activity that permanent water rights have made possible.

“The physical molecules...belong to the people of the state of California, and therefore any user can’t destroy those molecules, can’t send them to the moon, can’t make them unavailable to the public in any long-term way,” Scheuring said. “However, the right to use water...is very much a private right. It’s defined that way in California law, it’s been that way for 150 years. It’s just like land.”

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A date grove is reflected in an irrigation pond in the eastern Coachella Valley on Sept. 24, 2015.(Photo: Jay Calderon/The Desert Sun)

State officials have fended off the legal challenges from senior rights holders, but their ability to enforce water rights effectively is far from clear. In other Western states, officials can quickly force rule-breakers to stop taking water, said Michael Hanemann, a UC Berkeley professor who specializes in environmental and resource economics. But in California, the water board has to go through a complicated legal proceeding first, and success isn’t guaranteed.

“That’s a little like not having traffic lights, but having a camera and summoning you to trial after the event, based on the camera,” Hanemann said.

Fighting over fixes

For water experts, the solution to those problems is simple: Lawmakers should require rights holders to report their water use more frequently and more consistently, and they should give the state water board stronger enforcement authority. Short of that, they say, state officials should more aggressively assert their authority to monitor and manage California’s surface water, with confidence that their tracking and enforcement actions will stand up in court.

Howard, the state water board’s executive director, agrees the water rights system is broken. The problem isn’t that his agency doesn’t want to do a better job, he said — it’s that lawmakers haven’t given it enough funding to do so.

“I’d like to see everything measured, and I’d like to see all those things put together with proper enforcement. But those are very labor intensive activities,” Howard said. “It takes a lot of people and a lot of time.”

“If there was a strong desire by the people of the state of California to have a functioning water rights system, you’d have the resources in place to make those things happen,” he added. “There isn’t a strong political desire.”

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A field is irrigated near Fillmore Street and Avenue 52 in the eastern Coachella Valley on Sept. 24, 2015.(Photo: Jay Calderon/The Desert Sun)

Many experts also say California should make it easier for rights holders to transfer their water to other users, at least temporarily. That would allow more farmers to lease water to other users during severe shortages, without having to worry about losing their water rights long term — a legitimate fear under current law.

Some farmers would be open to easier transfers. But they’d probably fight hard against another idea popular among water experts: developing a new system for allocating water to the environment.

Setting aside water for “environmental” purposes might be the most contentious issue in state water politics. For decades, farmers, environmental groups, and government agencies have fought over how much water should be kept in rivers, streams and estuaries across Northern California and the Central Valley, to ensure healthy ecosystems and help endangered species like the Delta smelt survive.

California is legally required to protect the environment, and the Endangered Species Act mandates protection for fish like the Delta smelt. But water users who depend on rivers and streams have fought to take more water from those sources, arguing that state officials are unfairly prioritizing fish over people.

“You’ve got debates with a number of folks saying no, the water rights system should just be applied until every last drop in the river is gone,” said Ellen Hanak, director of the Water Policy Center at the Public Policy Institute of California, a San Francisco-based think tank.

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Sprinklers irrigate a field near Fillmore Street and Avenue 54 in the eastern Coachella Valley on Sept. 24, 2015.(Photo: Jay Calderon/The Desert Sun)

State officials should set firm baselines for how much water needs to be kept in rivers and streams, then incorporate those baselines into existing water rights allocations, Hanak said. Similarly, Frank believes a public agency or private environmental group should be put in charge of acquiring water rights on behalf of the environment.

Those kinds of conversations are non-starters with the agriculture lobby, which says fish already have enough water — more than enough, in fact.

“The environmentalists have long had ambitions to reform or change water rights to reallocate water to the environment. We certainly don’t want to play into our own demise on that,” Scheuring said.

It’s possible the farm lobby would oppose more limited changes to the water rights system, too, including enhanced reporting requirements and stronger enforcement mechanisms. After all, who’s to say small changes now wouldn’t lead to more sweeping reforms down the road?

“Everybody is terrified of moving to anything else, because nobody has any idea of what the alternative system would be,” Holyoke said. “They’re afraid they would lose out under the new system.”

Looking forward

One of the members of Brown’s 1977 water rights commission was a Tulare County rancher, Ira Chrisman. He wrote a short dissent that appeared at the end of the commission’s report, criticizing the group for not examining ways to increase water supplies to meet the state’s growing needs.

“The value of an adequate supply for agriculture, the State’s largest industry, should not be underestimated,” Chrisman wrote, nearly four decades ago. “Certainly the good health of agriculture impacts significantly upon the financial sector as well as upon the financial integrity of California.”

Today, farm advocates still say the best way to deal with scarcity is to produce more water, not to change the way water rights are managed. As far as they’re concerned, the system has worked as intended during the ongoing drought: Farmers have fallowed their fields as supplies have dried up, and many of them have leased water to urban areas.

“I haven’t heard one water user all over the state say the system hasn’t worked,” said David Guy, president of the Northern California Water Association, which advocates for farmers and rural communities, among others. “When you sit in an ivory tower, everything looks different, doesn’t it? For somebody who has to roll up their sleeves and make it work, it works.”

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The Coachella Canal, a branch of the All-American Canal, carries water from the Colorado River to Coachella Valley farms.(Photo: Jay Calderon/The Desert Sun)

Any legislative effort to change the water rights system would no doubt draw the attention of Assemblymember Henry Perea, a moderate Democrat with outsized influence on state politics. Perea, who represents some of Fresno and much of the surrounding farmland, led the group of Assembly Democrats who helped sink Gov. Jerry Brown’s call for a 50 percent cut in oil consumption earlier this year.

Perea said he’s open to making the water rights system work better — but only after policymakers tackle a more fundamental conversation about how California allocates its water.

Right now, about 50 percent of the state’s water goes toward environmental purposes, with 40 percent being used by agriculture and 10 percent going to cities. Before making changes to water rights, Perea said, lawmakers need to ask themselves whether those numbers make sense.

“I think it’s a conversation that must be had. We have to consider whether the existing use of our water is an appropriate one,” he said. “I think it would be a very uncomfortable conversation. I think there would be splits within the Democratic constituencies.”

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Lawmakers should also look for new opportunities to store water in dams and groundwater reservoirs, Perea said.

“Once we look at those conversations, then, if we need to, we can talk about water rights,” he said. “Once you start talking about changing water rights, you’re really talking about a generational shift. That is such a monumental task — and it’s so critical that we get it right — that I think we should start from an understanding of where we are today before we go making such dramatic changes.”

UC Berkeley’s Hanemann thinks lawmakers will eventually take up water rights reform. While it might not happen during the current drought, he said, California is likely to confront an even worse drought soon enough, thanks to climate change.

“This is like a smoker realizing he should give up smoking, but postponing it a little bit longer,” Hanemann said. “It’s like Augustine saying, ‘Oh lord, make me chaste — but not right away.’”

Sammy Roth writes about energy and water for The Desert Sun. He can be reached at sammy.roth@desertsun.com, (760) 778-4622 and @Sammy_Roth.

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Farms in the Coachella Valley are irrigated with water from the Colorado River.(Photo: Richard Lui/The Desert Sun)